May 2024 Church & State Magazine - May 2024

Ind. appeals court says abortion ban violates religious freedom


Activists support abortion rights in Indiana (Photo by Jon Cherry/Getty Images)

An Indiana appeals court ruled April 4 that the state’s abortion ban violates religious freedom, in part embracing an argument made by Americans United in a legal brief.

Judge L. Mark Bailey, the presiding judge of the First District Court of Appeals of Indiana, wrote a concurring opinion that cited several church-state provisions of the Indiana Constitution, including that “[n]o preference shall be given, by law, to any creed.”

Bailey observed, “Yet in this post-Dobbs world, our Legislature has done just that — preferred one creed over another” by taking a position on the question of when life begins.

This is the argument Americans United, joined by 14 religious and civil-rights organizations, raised in an amicus brief in the case. AU urged the court to protect religious freedom by affirming an injunction against a state abortion ban that imposes legislators’ religious views on all Hoosiers, in violation of the religious-freedom protections in the Indiana Constitution. The brief was authored by Interim Legal Director Alex J. Luchenitser and former Steven Gey Constitutional Litigation Fellow Kalli A. Joslin.

Bailey wrote, “[W]here theologians cannot agree, legislators are ill-equipped to define when life begins.”

He also connected the protections of church-state separation to religious freedom and abortion rights, asserting, “Legislators, an overwhelming majority of whom have not experienced childbirth, nevertheless dictate that virtually all pregnancies in this State must proceed to birth notwithstanding the onerous burden upon women and girls. They have done so not based upon science or viability but upon a blanket assertion that they are the protectors of ‘life’ from the moment of conception. In my view, this is an adoption of a religious viewpoint held by some, but certainly not all, Hoosiers. The least that can be expected is that the remaining Hoosiers of child bearing ability will be given the opportunity to act in accordance with their own consciences and religious creeds.”

Americans United President and CEO Rachel Laser hailed the decision in the case, Individual Members of the Medical Licensing Board of Indiana v. Anonymous Plaintiff 1.       

“The court rightly found that Indiana’s abortion ban cannot override religious freedom protections in Indiana law,” Laser said in a media statement. “As we told the court, abortion bans undermine religious freedom by imposing one religious viewpoint on all of us. Abortion bans are a direct attack on the separation of church and state.

“If America is to make good on its promise of religious freedom, each of us must be free to make our own decisions about our own bodies based on our own beliefs,” Laser continued. “That’s why we need a national recommitment to the separation of church and state. It’s the shield that protects freedom without favor and equality without exception for all of us.”

In other news about abortion:

  • The Florida Supreme Court has allowed a law that bans abortions after six weeks to take effect. The measure was signed into law by Gov. Ron DeSantis (R) but was tied up in courtroom challenges.

At the same time it issued the ruling, the state high court approved the wording of a ballot initiative that, if passed, will protect abortion rights in Florida. The measure will appear on the November ballot and needs the approval of 60% of voters to pass.

  • Arizona’s Supreme Court ruled April 9 that an 1864 law that bans nearly all abortions remains in effect.

“Physicians are now on notice that all abortions, except those necessary to save a woman’s life, are illegal,” the court declared in its 4-to-2 decision. The court put the ruling on hold temporarily while some other constitutional matters are considered by a lower court, but abortion providers said they would probably have to shut down by the end of this month.

Congress needs to hear from you!

Urge your legislators to co-sponsor the Do No Harm Act today.

The Do No Harm Act will help ensure that our laws are a shield to protect religious freedom and not used as a sword to harm others by undermining civil rights laws and denying access to health care.

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